Telangana High Court
Nooty Vasishta Venkateshwarlu vs Smt Nooty Sindhu Sharma on 15 December, 2020
Author: M.S.Ramachandra Rao
Bench: M.S.Ramachandra Rao
THE HONOURABLE SRI JUSTICE M.S.RAMACHANDRA RAO
CIVIL REVISION PETITION No.1058 of 2020
ORDER:
This Revision is filed by the petitioner assailing the order dt.28.09.2020 in I.A.No.21 of 2020 in O.P.No.117 of 2019 on the file of the Additional Metropolitan Sessions Judge for Trial of Jubilee Hills Car Bomb Blast Case-cum-Additional Family Court- cum-XXIII Additional Chief Judge-cum-IX Additional Metropolitan Sessions Judge, Hyderabad.
2. The said O.P. was filed on 12.09.2019 by the petitioner under Section 13(1)(i)(a) of the Hindu Marriage Act, 1955 alleging that respondent treated him and his family members with cruelty, and relief of dissolution of marriage solemnized between petitioner and respondent on 02.08.2012, was sought in the said O.P.
3. Two children were born to the parties by name Baby Rishitha, aged between 4 to 5 years and Baby Sri Vidya, aged less then 3 years.
4. The petitioner had initially filed I.A.No.91 of 2019 under Section 26 of the Hindu Marriage Act seeking temporary custody of the both children every week and during school holidays. The said I.A. had been disposed of on 23.12.2019 by the Court below emphasizing the need to grant visitation rights and the fact that the children are entitled to love and affection of both parents. It granted 2 custody of elder child Baby Rishitha on every Saturday from 5 p.m. to Sunday 5 p.m. and during her school holidays from Friday 5 p.m. to Monday 10 a.m. and custody of the younger child Baby Sri Vidya on every Sunday from 9 a.m. to 6 p.m. until further orders.
5. The respondent had questioned the same in C.R.P.No.735 of 2020. The petitioner had filed C.R.P.No.360 of 2020 seeking modification of the order of the trial Court and seeking permission to take both children at the same time and for the same duration and custody of both children during summer holidays.
6. This Court had disposed of the same on 01-06-2020 allowing C.R.P.No.360 of 2020 and dismissing C.R.P.No.735 of 2020.
7. During the pendency of the said C.R.Ps., the petitioner had filed I.A.No.5 of 2020 seeking permanent custody of the children.
8. Since the relief prayed in the said I.A. was outside the scope of I.A.No.91 of 2019, the said application was dismissed granting liberty to the petitioner to approach the Family Curt, if so advised. I.A.No.21 of 2020
9. Thereafter I.A.No.21 of 2020 was filed by the petitioner seeking custody of elder minor child Baby Rishitha pending disposal of the O.P. while granting visitation rights to the respondent.
10. The main ground on which the said relief is sought is that Baby Rishitha was made to repeat U.K.G. class in Little Flower School, Uppal in the academic year 2020-21 instead of studying the higher 3 Class-I, though the said child had already graduated from U.K.G. class as per a certificate issued to her in a graduation ceremony held on 08.02.2020. It was contended that this would result in loss of one year in the academic career of the child, that the above information was suppressed from the petitioner and it indicates that respondent is not taking adequate care of the welfare and wellbeing of the child.
11. Reliance is also placed on certain events which occurred before a Division Bench of this court in W.P.No.10142 of 2019 inter-partes and it was pointed out that when the said Writ Petition was pending in the Court, an affidavit was filed on 28.08.2019 by the respondent stating that the child was admitted in U.K.G. class in Little Flower School, Uppal in August, 2019, and it is contended that since the child would have normally passed out of U.K.G. at the end of 2019- 20 and thereafter got promoted to Class-I, the respondent cannot make the child again repeat U.K.G. class in Little Flower School.
12. It is stated that petitioner came to know about this fact when a video was uploaded on respondent's Face Book page on 21.06.2020 in which the child disclosed that she was attending U.K.G. class again in Little Flower School, Uppal.
Counter affidavit of the respondent
13. Counter-affidavit was filed in the Court below by the respondent stating that due to turbulent events between the petitioner and respondent, which are set out in detail in the O.P., the 4 child's academic performance got affected and she did not cope with the sudden promotion to U.K.G. class, and the Principal of the School and the Class Teacher advised the respondent to retain the child in U.K.G. class stating that the performance ought to be commensurate with her age. It is also contended that the National Education Policy prescribes minimum age for admission of a child to Class-I as 5.5 to 6 years and the child Baby Rishitha was born on 25.07.2015 and she completes 5 years on 25.07.2020 and no school which follows the said Policy would allow her in Class-I. It is stated that taking into account the advice of the School Principal, the respondent allowed the child to repeat U.K.G., which would be in the best interest of the child.
The order dt.28.9.2020 in IA No.21 of 2020
14. After hearing both sides, the Court below dismissed I.A.No.21 of 2020 on 28.09.2020.
15. After referring to the contentions of both sides and case law cited by the parties, the Court below observed that interest and welfare of the minor children is of paramount importance and it is the duty of the Court to take into consideration the said factor whenever disputes of custody are required to be considered.
16. It held that the petitioner did not make any allegation against the respondent about the way she brought up the children except on the aspect of education of Baby Rishitha; though the petitioner, as father of the child, was anxious about her education and career, the 5 respondent had stated that the child was under aged to be promoted to Class-I as per the norms of CBSE and she would not be able to cope up with the syllabus due to under age, and on the advice of the School Principal and Class Teacher, in the best interest of the child, she had allowed to retain the child in U.K.G.
17. It held that the explanation given by respondent was convincing and on the sole ground of alleged negligence by respondent in making the child to repeat U.G.K. class, custody of the child cannot be changed from her mother.
18. It observed that respondent is presumed to have taken the said decision on the advice of the Principal of the School, that she had also assured the Court that the performance of the child would henceforth be excellent and that respondent would continue her efforts for all-round development of her children.
19. It also observed that petitioner has opportunity to monitor the studies of the child since he has got temporary custody every week and would have also time to spend vacations with the child equally as per the orders passed by this Court and petitioner can also interact with the School Authorities about her studies and progress from time to time.
The present Revision
20. Assailing the same, this Revision is filed. 6
21. Heard Sri Sunil B.Ganu, learned counsel for petitioner and Smt.S.Vani, learned counsel for respondent. The consideration by the Court
22. The question to be considered is:
"whether the impugned order passed by the Court below warrants interference by this Court in exercise of its discretionary jurisdiction under Article 227 of the Constitution of India?"
23. It appears that the relationship between the petitioner and respondent has got severely strained and they have made several allegations against each other and their family members in the pleadings filed in the O.P. and also in I.A.No.21 of 2020.
24. But the admitted fact is that Baby Rishitha is of tender age and was born on 25.07.2015 and had been in the custody of mother/respondent ever since the O.P. has been filed on 12.09.2019. Even prior thereto, she was with the respondent only.
25. The petitioner requested the Court to grant him interim custody by taking the child away from the custody of respondent on the ground that respondent made the child to repeat U.K.G. class in Little Flower High School by not paying attention to child's education and without informing him and taking his consent. According to him, the child would lose one academic year on account of the said fact and this ground is sufficient to change the custody of the child.
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26. No doubt orders relating to custody of children are by their very nature not final, but are interlocutory in nature and subject to modification at any future time upon proof of change of circumstances requiring change of custody, but such change in custody must be proved to be in the paramount interests of the child and that it must be established that the previous arrangement was not conductive to the child's welfare or that it had produced unsatisfactory results. (Dhanwanti Joshi vs Madhav Unde1).
27. As rightly held by the Court below, welfare of the minor child is paramount consideration which has to be kept in mind in matters relating to grant custody of minor child.
28. It is undeniable that the child would experience shock in the event of change of custody when proceedings are still pending before a Court of competent jurisdiction.
29. The Supreme Court has held that stability and consistency in the affairs and routines of children is also an important consideration for change of custody of minor in interim custody proceedings (Athar Hussain vs Syed Siraj Ahmed & Ors2).
30. If the respondent had taken the decision to make the child Baby Rishitha repeat U.K.G. class on account of advice of Principal of the School, where the child is admitted, keeping in mind the age of the child and her mental capacity and also the stress which the child is faced on account of litigation between the parties, it cannot be said 1 (1998) 1 SCC 112 2 (2010) 2 SCC 654 8 that there are circumstances warranting change of custody on that sole ground.
31. Therefore I do not find any valid reason to interfere with the order passed by the Court below at this point of time.
32. Accordingly, the Civil Revision Petition fails and it is dismissed. No costs.
33. Consequently, miscellaneous petitions, pending if any, shall stand closed.
___________________________ M.S.RAMACHANDRA RAO, J Date : 15-12-2020 Vsv